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Medical malpractice reform efforts stalled

The HEALTH Act has little chance of clearing the Democrat-controlled Senate. |
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The caps, already in place in many states including Texas and California, may provide more predictability for doctors and malpractice insurers. But they do nothing to address the underlying system, which is increasingly understood to serve neither patients nor doctors well or fairly. But the political debate over how to address the problem has ossified into a rote partisan exercise, Bovbjerg said.

“The lawyers say the system works great,” he said. “The other side says it’s the worst thing since the fall of man from Eden, but if we have a little less of it, it will be fine.”

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In his book, “Healthcare, Guaranteed,” Ezekiel Emanuel, a bioethicist now at the University of Pennsylvania and a former White House adviser on health policy, laid out the case against the existing malpractice system.

“Numerous studies have shown that the majority of patients who suffer a medical error are not compensated, while a select few win outsize awards. And on average, patients must wait nearly five years to resolve claims and receive payments from a malpractice case — six if the case is related to the delivery of a baby.”

Among the alternatives being developed in several states or communities include the “disclose and offer” or “disclose and apologize” model. First introduced by the Veterans Administration and adopted by other health systems, including the University of Michigan, it encourages health providers to acknowledge and apologize for medical errors and offer patients compensation. If the patient rejects the offer and opts to sue, any previous admission would be inadmissible in court. Proponents say this model encourages providers to identify mistakes openly — and work on ways to prevent errors or harm from happening to another patient.

Health courts, based on previous specialized courts, would provide administrative compensation as ordered by trained judges and medical experts, rather than the usual trial by a lay jury. These have not been tested yet.

The safe harbors model would protect providers from liability if they follow established best practice guidelines, although in many cases, those guidelines have not yet been specified or widely agreed on.

“There are a lot of ideas that need to be tested as a first step,” said Michelle Mello, a professor of public health at Harvard and a malpractice reform advocate who has applied for funding through AHRQ.

The initial round of AHRQ grants provided funding to develop and test some of these models, particularly the disclose and offer variety. The demonstration grants went to university researchers, health systems, a public health department and a court system.

And the idea was that some of the 13 planning grants would subsequently get project-level funding.

“That was the hope,” said Joy Wilson, health policy director of the National Conference of State Legislatures. “But it’s not easy to fund anything in this environment. It didn’t happen.”

Advocates of comprehensive malpractice reform are frustrated by the mismatch between rhetoric and action. And the AMA still wants a nationwide fix.

“It will come back around — and sooner rather than later — because fundamentally, you can’t manage health care if you can’t manage health care justice,” Howard said. “But no politician wants to do it.”

Readers' Comments (8)

It would save 54 billion over 10 years, or about 5 billion a year? This is when total healthcare costs are about a trillion dollars a year. A savings of less than 1% a year. And who ends up paying for injured patients undercompensated? Why do Republicans want to mess with the 7th amendment?

I think there should be a limited on the amount that a person can get for non-economic conditions. It should be a able amount, probably not more than $500,000. If there are economic conditions involved, the the person should probably get at $1,000,000 but nor more than $10,000,000. What ever the settlement is between the 1-10 range, plus the cost of all medical requirements. This additional cost would only cover the medical costs which is separate from the settlement.

If a person wins a claim for $250,000,000 who pays for it. I don't think the doctor would be able to meet the preimum payments for that type of coverage to the insurance company. The insurance company is only liable up to the amount the doctor requested and paid for. Anything above that would be the doctor's responsibility.

If a doctor is declared negligent, then that doctor should also lose his license. If he is convict of negligent, he has set precedance and more than likely would commint it again. This goes against the principle that you are innocent until proven guilty. But if you are convicted of negligence, you should not be given the opportunity to do it again.

What, a promise Obama broke to get something HE wanted and then left the AMA swinging in the wind? This is what the GOP and America has learned; do not listen to Obama because he is always lying. Do not make a deal with Obama unless both get what they want at the same time because Obama will change the rules and back out of the deal once he has what he wants.

Talk to your doctor about it and tell that person they should be sued because their obese patient ignored all their warnings and had a heart attack then sued them. Doctors have targets on their backs, but you would never understand that.

President Obama had the right idea; monies for test projects that will provide invaluable data as to which experimental method works best in solving the liability/malpractice problem. What about a two-step solution? I think the disclose & propose option is a good start. If the proposal or offer is rejected by the patient, the case could be taken to a health court of experts. I suspect the disputes would be resolved more expeditiously and economically fair.

The problem with most laws made on the state and federal levels is that they are made without scientific testing first. Our legislators put up big monies and require sweeping changes without knowing the consequences, making US all guinea pigs.

Here's a clue: 'Loser pays!!!' Get the trial lawyers association's influence out of Congress.

This idea has some merit, but not a 100% loser pays system. Lawyers for the doctors and insurers regularly engage in delaying tactics hoping that their deeper pockets can outlast the plaintiffs. Making plantiff's attorney's 100% liable for these costs would stifle legitimate suits. Having said that, some penalty or fine or decertification for law firms that habitually file losing suits could be a good thing.

I would point out that trial lawyers have as much right to have influence in Congress as insurance companies, medical associations and corporations. If you advocate taking away the influence of one, you should advocate taking away the influence of all of them.

I think it is a far fetcvhed idea to have federal tort reform caps. The supreme courts in each state will have a fit with that. There are far too many opinions to allow something that broad based to happen. We do need tort reform to help cut down on the number of cases but damage caps aren't the way to do it. Damage caps are used because it reduces medical malpractice insurance rates very quickly but it does little to help patients who are severely injured.